Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0800877
Original file (ND0800877.rtf) Auto-classification: Denied
ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080325
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: NONE                                       Active:

Period of Service Under Review:
 Date of Enlistment: 19950829      Period of E nlistment : Years     Date of Discharge: 19990630
Length of Service : Active: Yrs Mths 22 D ys Inactive: Yrs Mths 10 D ys          Education Level:
Age at Enlistment:       AFQT: 71          Highest Rank /Rate : AA
Evaluation M arks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : UA: 3 specifications all 1 day or less:
 19990409 (1 day), 19980122 ( 30 mins) , 19980714 (1 hr) .

NJPs :    
         19980904 : Art icle 91 ( Failure to obey a lawful order, Disrespectful language) 2 specifications .
         Awarded - . Susp - . Vacated 19981209.

         19981209 : Art icle 128 ( Assualt), Unlawfully grab an Airman Apprentice by the chest .
         Awarded - CC for 30 days . Susp - .

         19990617: Art icle 121 (Larceny )
         Awarded - BW FOP. Susp - NONE.

C C :      

Retention Warnings: .
         19980904 : For failing to obey a lawful order and being disrespectful in language toward a third class petty officer .
         19981209: For assault.

Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Missed ship’s movement due to arrest for civilian charges .
2. Applicant states the assault was done in self defense .

Decision

Date : 20 08 0702             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 ( ) : . The Applicant contends his discharge should be upgraded because he was wrongfully sent t o nonjudicial punishment (NJP) for missing ship’s movement after being arrested for a civilian offense that was later dismissed. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s service was marred by 2 retention warnings, and 3 nonjudicial punishment proceedings for violations of the U niform C ode of M ilitary J ustice (UCMJ) , Article 91 ( Insubordinate conduct ); Article 92 ( Failure to obey an order or regulation ); Article 121 (Larceny), and Article 128 ( Assault ) . There is no evidence in the record to support the Applicant’s allegation he was sent to NJP for missing ship’s movement.

The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. The Board determined an upgrade would be inappropriate.

( ) : . The Applicant further contends his discharge should be upgraded because he was wrongfully punished at NJP after he grabbed a PO3 who kicked him i n the shoulder. Based on a review of the record, the Applicant was found guilty and awarded punishment at NJP on 9 December 1998 for unlawfully grabbing a n airman recruit.
The Applicant admits to grabbing a PO3, slamming him against a wall threatening “If you ever kick me like that again I’m going to put a beating on you.” There is no evidence contained in the record, nor provided by the Applicant to support his allegation of wrongdoing by his chain of command. Despite the fact the Applicant had been kicked by the PO3, his reaction was inappropriate. Appropriate action would have been to report the alleged assault to his commanding officer or to the master at arms. The Board determined an upgrade was not warranted.

 The Applicant’s in service performance is not sufficient to mitigate the misconduct which resulted in his discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 21 August 2002,
Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

 B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801337

    Original file (ND0801337.rtf) Auto-classification: Denied

    The Board determined based on the limited documentation provided an upgrade would be inappropriate and the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the time served and the UCMJ violation involved.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the...

  • NAVY | DRB | 2009_Navy | ND0902535

    Original file (ND0902535.rtf) Auto-classification: Denied

    Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal...

  • NAVY | DRB | 2008_Navy | ND0801214

    Original file (ND0801214.rtf) Auto-classification: Denied

    Additionally, the Applicants argument that he was wrongfully discharged nine days prior to his EAOS is also without merit since MILPERSMAN 1910 – 152 allows for separation of a member any time during their career if there is a determination of alcohol treatment failure.Based on a review of the evidence the Board determined an upgrade or change would be inappropriate. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge...

  • NAVY | DRB | 2012_Navy | ND1200305

    Original file (ND1200305.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2008_Navy | ND0801502

    Original file (ND0801502.rtf) Auto-classification: Denied

    Additionally, there is sufficient evidence to substantiate discharge for misconduct due to the commission of serious offenses and the fact the misconduct did not occur “back to back” as the Applicant contends is of no consequence since all of the NJP’s which led to the Applicant’s discharge occurred during the current enlistment as required under MILPERSMAN 1910 -210.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge...

  • NAVY | DRB | 2008_Navy | ND0801172

    Original file (ND0801172.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2008_Navy | ND0800896

    Original file (ND0800896.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.The Board determined based on post service documentation provided an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record...

  • NAVY | DRB | 2008_Navy | ND0800603

    Original file (ND0800603.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2008_Navy | ND0801504

    Original file (ND0801504.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2008_Navy | ND0801010

    Original file (ND0801010.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.The Applicant provided a personal statement and documentation of his honorable discharge from the New York Army National Guard as evidence of post-service accomplishments. The Board determined an upgrade or...